Saturday, April 7, 2007

The Long Arm (And Short Fuse) Of The Law

this from http://nzhumanrightslawyer .blogspot.com
Saturday, April 7, 2007

Politics makes strange bedfellows and there are no stranger metaphorical night-time companions at the moment than Sue Bradford and the New Zealand Police. Ms Bradford's own career as an activist saw her in the High Court at least once (see Bradford v Police) and one would have thought she and the Police were not the most natural of allies. The fraught passage of the repeal of Section 59 of the Crimes Act however has seen her extolling the even-handed manner in which the Police conduct prosecutions to reassure the Bill's opponents that they will not see frazzled but otherwise law-abiding parents in the dock for an open handed paddle of their toddler's backside in the canned goods aisle of the supermarket.

That argument rather fails if my experience of the exercise of the Police discretion to prosecute is anything to go by. I have defended people in the Wellington District Court of some dire crimes against humanity including chalking slogans on the footpath outside Marion Hobbs' electorate office ('wilful damage'), taking discarded food out of supermarket skips (`theft') and dressing up in kangaroo suits and hopping around the Australian Embassy (`burglary'). The power of the anti-smacking argument for me is undeniable-how can you square hitting the most vulnerable members of society with a desire to end violence in our community? Whether you need to bolster that argument with airy claims of Police forbearance is another matter.

Mark Lillico
- lawyer at Ord Lillico in Wellington, New Zealand(mark@ordlillico.co.nz). My practice deals with human rights issues mainly in the context of criminal defence work, prisons and immigration.

Thursday, April 5, 2007

Pita Sharples on Section59

this from http://www.scoop.co.nz

A piece of legislation that is getting everyone talking around town is the Bill to repeal Section 59 of the Crimes Act.  You will no doubt be aware of the background to this Bill.

Basically, Section 59 of the Crimes Act 1961 states that the parent of a child, or a person in the place of a parent, "is justified in using force by way of correction towards a child, if that force is reasonable in the circumstances".

Now I guess there will be lawyers amongst you, analysts, and those who indulge in the craft of word-smithing that will know exactly what sort of a challenge would face a jury, in deciding if the force used was 'reasonable' in the circumstances.

How much harder though, to determine whether the parent had grounds to use reasonable force to get his/her child to perform their normal daily tasks that are incidental to good care and parenting.  Because this sounds uncannily like correction.

Is it reasonable for a father to hit his eight year old son eight times with a piece of wood 30cm by 2 cm?

A 30cm ruler for crying out loud - since when do we call rulers "pieces of wood"?  Why not just take the thing to it's logical conclusion and tell New Zealand that the man hit his son with a branch?   Click here to see the "piece of wood"

Is it reasonable for a father to hit his 12 year old daughter with a piece of hosepipe, leaving a raised 15cm-long lump with red edges?  Apparently so, according to some recent jury decisions.

Well not everyone thought so, and consequently a humble little Bill, consisting of a mere three pages, came upon the order paper. And before you know it a cyclone of fury and indignation had swept throughout the country, as New Zealanders expressed their horror that
the State would seek to intervene in matters that they felt were best left to the domain of the parent.

It's an ethical issue, it's an issue of integrity; it's an issue of courage.  We, in the Maori Party, are firmly committed to the concept of self-determination, of ensuring the people drive their own journeys forward; are supported to achieve their own dreams.  But we are also staunch advocates of the notion of collective responsibility - which translates in this case, to all of us having a role in the upbringing and care for children.

By this I think of the vertical and horizontal care which takes into account the roles of grandparents, siblings, aunties, uncles in helping to impart the duties, responsibilities and obligations that exist within whanau. Literally layers of generations are able to be drawn on to
parent the child.

One of the incredible gifts that whakapapa provides us with, is the wide range of choices which genealogies offer.

In my own case for instance, I have the histories and legacies of Ngai Te Kikiri o te Rangi and Ngati Pahauwera of Ngati Kahungunu to draw from. The inspiration of my ancestor, Toi Kairakau; the expansive breadth that flows from this genealogy, is my history, my bonding to these islands.

And I also draw on ancient Anglo-Saxon history, the Sharples of Bolton near Lancashire.

Every child born has a huge range of ancestors to learn from; the history of their people; the origins and the adventures of their ancestors; the songs, proverbs and folk stories left to them.

The responsibility for nurturing that character rests with us all. It is our responsibility to create the desire to learn; to inspire the confidence to take risks; to motivate and encourage.

It was Galileo who said, "You cannot teach a child; you can only help him to find it himself".

Even the best of us get it wrong some times...  Of course you can teach a child.

And the greatest thing about this is that if we do believe in collective care, we can be confident that even if it is not I, myself, Me - who unlocks the key, there will always be someone in the greater family, who will see the gifts in your child, that perhaps you are not looking for.

In a thesis written by Averil Herbert, Whanau Whakapakari: a Maori-centred approach to child rearing and parent-training programmes, she explains how these vertical and horizontal care arrangements I have referred to, work.

The thesis was informed by eight kaumatua, who all consistently referred to the many generations who were part of their upbringing. One kuia described the impact this parenting had in her own parenting practice today, in her words:

"I have one sister and her children are very close to me. I see them as my own children. My sister's mokopuna, they are my mokopuna. The children of my first and second cousins are like my nieces and nephews. I am very close to them".

The influence of senior female relatives in teaching and instilling Maori values was consistently referred to. One kaumatua spoke of this as 'the kuia model'.

This model is still very active today. We know in some of our smaller rural areas, that say if a teenager was to get in trouble with the police, the community constable knows the most effective outcome is often to ring up one the kuia known for caring for these kids, the ones who know to pick up the responsibility.

That same role of being 'everybody's nanny' may also mean they turn up in homes, when they suspect the environment is failing to keep children safe, and abuse free.

What has become startlingly clear to me over the debates of the last few months, if that we must be vigilant to promote violence free homes, to raise the bar, to set standards which truly seek to uphold peace and justice in our families.

Yes Pita, even though 85% of New Zealand says that Repeal of Section 59 is not the way to achieve this.

John Key on Section 59

some comments from a letter from John Key, Leader of the Opposition to Peter Burns 20 March 2007.  See the full letter here

"...Thank you for contacting me regarding Sue Bradford's Member's Bill proposing the repeal of Section 59. I have voted against the bill in previous stages and over 40 of my National Party colleagues have done the same. I will be continuing to vote this way, and will continue to make media comments against the bill. I am more constant on this issue than Helen Clark, who said prior to the election that she would not support such a bill.

A lot of people have spoken to me in recent months about this issue. I've heard from many who are worried they'll be criminalised for being ordinary parents, and giving the odd light smack.

I've also heard from people who support the bill and think that no one should be able to hide behind Section 59 and get away with assaults on children. What people who support the Bill hope is that by changing the law we will send a message to all New Zealanders that child abuse is not acceptable.

I agree that a message needs to be sent. Child abuse is not acceptable. However, I do not believe the bill to repeal Section 59 will change anything for the children growing up in violent families. Nor do I see any good in criminalising good, ordinary, parents doing their best..."

"...The pressure can, and should, continue on the MPs who are working with the Greens in forcing this issue – specifically the Labour Party and Maori Party."

"Within the National Party several MPs have been given permission to vote for the bill. They have not taken this move lightly, and it has been the subject of much discussion within our caucus, but allowing people to follow their wishes on such votes is a long standing precedent within the Party. The Labour Party is not allowing such a process, and is forcing those MPs who do not agree with the bill to vote for it. The Maori Party has also come out for the bill, despite huge community concern. This means that Sue Bradford has the numbers to pass the bill, without any National support."


Wednesday, April 4, 2007

Maxim Institute: Think again - family violence

original article at
http://www.maxim.org.nz
John Fox | 4 April 2007

The campaign against 59 of the Crimes Act, otherwise known as the "anti-smacking Bill", arouses strong feelings. Those who support the Bill draw attention to New Zealand's violent culture, and our damningly high rates of child abuse. It is natural to feel that something ought to be done, even if it is just a gesture; a step in the right direction to prevent tragedies like the Kahui twins occurring and to tackle our culture of violence. We should, we must, do that. But this Bill will not achieve it.

Ms Bradford and the Prime Minister chime together that the Police will use their discretion and leave good parents and families alone, however, the Bill will still put good loving parents on the wrong side of the law and leave them open to investigations and prosecution. In the process it will undermine parents' authority over their children.

Child abuse is already illegal. We have laws which punish family violence already. This Bill would criminalise "reasonable" corrective force such as the light smacking used by thousands of Kiwi parents as a disciplinary technique. The best research available, Dr Jane
Millichamp's, suggests that such light smacking (differentiated from beating, or hitting, or child abuse, which is illegal), is not harmful to children, and most Kiwi parents would agree.

The common argument the supporters of the Bill are mustering, is that the Bill will "send a message" that violence against children is unacceptable. But that message is already sent by laws against abuse.

If criminal law "sends a message", it is about the kind of behaviour we as a society find wrong, unacceptable, and criminal. Things like murder, rape, and child abuse come into that category. By passing the Bill, we would be putting light smacking into the same category, something to be prosecuted in a Court.

Our politicians are right to be concerned about family violence, but they should not be passing a law that they do not want the Police to enforce simply to "send a message". There are speeches and soap-boxes and press releases and TV cameras for that. Law is for crime, and for behaviour that is harmful and criminal and should be prosecuted.

Further, the Bill would do nothing to address the root causes of child abuse and family violence. UNICEF has said what some of the risk factors for abuse are: family breakdown, alcohol, drugs, poverty, low education and so on. The Bill does not tackle these risk factors for family violence.

The State and the Police should certainly intervene when there is crime or severe dysfunction, domestic violence and child abuse. There are decisions under the current law that we don't all agree with, and they show the need to improve and tighten the situations where parents can use discipline, but banning all reasonable correction goes too far and good parents should be left alone.

We are all attracted by a vision of the kind of society we can be; a country without violence, where children are safe. But after we have all agreed on the destination, it comes time to chart the path to take us there. Our MPs could have begun a deeper look at why our society is violent, why families and lives are broken, and the risk factors for family violence. Instead, they are choosing to make thousands of parents into criminals and license interference in good families. That is a wrong turn, the wrong path, and the wrong way.

Tuesday, April 3, 2007

Govt: "You parents have always been criminals"

this from www.familyintegrity.org.nz

A text without a context is a pretext.

This is what Labour and the Greens are doing now with the Bill to criminalise parents. They are saying that the historical and accepted understanding of smacking and time-out as legal expressions of Section 59's "reasonable force" have, in fact, been illegal all this time.

That is like saying it has always been illegal for police to make arrests.

Looking solely at the legal definition of Assault in Section 2 of the Crimes Act shows that time-out, smacking and arresting all constitute acts of criminal assault. But taken in the context of the entire Act, it becomes obvious that Section 59 recognises parents have legitimate authority to use "reasonable force" - not unreasonable force - to correct their children and that several other sections of the Act give police and even bystanders legitimate authority to use force - sometimes the Act doesn't even specify that it must be "reasonable" - to arrest people for various reasons.

So Labour and the Greens reference the text of Section 2 of the Crimes Act, without the context of the rest of the Act, for the pretext of claiming that smacking and time-out are already illegal.

The second pretext employed by Labour and the Greens is to say that "all this Bill does" is remove the defense of "reasonable force" for correcting a child. So after telling us that the Bill won't criminalise parents, because those who smack are already criminals, they add that from now on parents who smack or use any force at all to correct will have to be found guilty of assault, for there will no longer be a legal defense.

Labour and Green are saying, "You parents have always been criminals. From now on you have no refuge in law. If you use even reasonable force to correct your children for anything they do, you will be guilty of child assault. If you are seen or even suspected, you will be investigated. If you have corrected your child, you will be charged and you will be found guilty, for there is no longer a legal defense for correcting a child."

- Craig Smith

Monday, April 2, 2007

Public Relations war for anti-smacking bill

read full story here:
 
http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10432282
5:00AM Tuesday April 03, 2007

"The Government is relying on child welfare groups such as Plunket and Barnardos to convince the public of the merits of Green MP Sue Bradford's so-called "anti smacking" bill.

Yesterday, Prime Minister Helen Clark ruled out the government taking over the private member's bill, saying it "just has to take its course".

Labour had been widely expected to adopt the bill as its own to push through the controversial legislation, which if passed would stop parents using the defence of "reasonable force" to defend a charge of assaulting a child.

Labour strongly supports the bill, but has been daunted by polling numbers that show overwhelming public opposition to a measure many feel would intrude on parents' ability to discipline a child as they see fit. Labour will not drop its support for the bill, which is destined to be passed thanks to the support of the Maori Party and two New Zealand First MPs.

However, yesterday's announcement means the final vote could be months away, with debate not scheduled to resume until May and delaying tactics from opponents of the law change likely to postpone the bill's passage until June or July..."

Phil Goff Misleads Parliament over Bradford Bill

excerpts from the document "Minister Misled Parliament over Bradford Bill"
http://www.scoop.co.nz/stories/PO0704/S00024.htm >
Monday, 2 April 2007, 4:43 pm - Press Release: Society for the Promotion of Community Standards

"On Thursday the 29th of March the Hon. Phil Goff misled the House during Question Time when he answered a question put to him by Taito Phillip Field, Independent MP for Mangere. Mr Field asked the Acting Minister of Police whether he could assure "good parents" that they would not be prosecuted for smacking their children for corrective purposes, should Sue Bradford's bill ever become law. Mr Goff misled the House on two counts in his answer (see Hansard full transcript below).

Goff replied in the affirmative: "the police guidelines, which follow the Crown Law Office guidelines, make it ABSOLUTELY clear that MINOR forms of offending will NOT be prosecuted". [Emphasis added].

However, once Bradford's bill becomes law, the police cannot treat smacking for correction involving a child as "MINOR forms of offending". Every formal complaint involving a child will have to be investigated promptly and current police guidelines dealing with "family violence" make this very clear as police spokespersons and leading lawyers have repeatedly pointed out. Whether they proceed to prosecute will be left to police discretion, but this does not provide the assurance the public are seeking.

If there is no justification in law under Bradford's bill for parents to use any form of "reasonable force" for correction, then a child's claim (possibly exaggerated) as to how hard he was 'hit' or the extent of pain caused, and/or a by-standers perception of the these matters; will be the critical factor(s) that may lead an officer to charge the parent. If an officer knows there is no chance of a s. 59 defence being used by the parent, and no chance of any defence under summary law being relied on, (both defences are removed in Bradford's bill), and he is somehow convinced that the case is not a "MINOR" one, then he will find it much easier to take a risk and press charges than under current law. What's there to lose, he night ask? Why shouldn't I prosecute? His attitude may very well be: let the Courts decide not the police. Under current law, with s. 59 in place, there is a safeguard for "good parents" to rely on, should a false allegation lead them into Court proceedings...

...The case Mr Goff cites shows how police have prosecuted and will continue to prosecute adults who have formal complaints lodged with the police against them for administering a "pat on the bottom" to a child when no justification exists in law for the use of such "reasonable force" (s. 59 did not apply as a defence for the creche worker, nor will it apply to parents under Bradford's bill). Once s. 59 goes, should Bradford's bill become law, parents and those in the place of parents will find themselves as vulnerable to prosecution for assault as any creche worker, for merely carrying out parental duties involving the application of "reasonable force" for the purpose of correction. The role of parenting is demeaned to the level of child minder/creche worker (no disrespect intended towards creche workers!). Parents are not just child minders. The parent-child relationship is a sacred one with special and unique features. The parent for example is responsible for the moral upbringing of the child.

The fact that the appellant endured a seven day trial and two hearings before the Court of Appeal, for what the Court of Appeal effectively said were only trifling matters, and matters that were three or four years old, shows sadly how police can get it so very, very wrong.

Mr Goff misled the House to claim the police guidelines and a single Court of Appeal judgement can provide "good parents" will "quite strong confidence" that they will not be prosecuted by the police for lightly smacking their children for the purpose of correction, should Bradford's flawed anti-family bill become law."

Bradford: 80% Kiwis are savage child-beaters

this from http://www.stuff.co.nz/4014017a11.html
By PETER WILSON - NZPA | Monday, 2 April 2007

The Government is not going to adopt Sue Bradford's bill to change the law on smacking, Prime Minister Helen Clark said today.

It had been considering turning the controversial bill into government legislation so it could speed up its progress in Parliament and shut down the row over its provisions.

But Miss Clark said even if that was done, its opponents could still hold it up and it would probably not be passed into law before the three-week Easter recess.

Because it is a member's bill it can only be debated every second Wednesday Parliament is sitting, which is why it has taken so long up to now and its opponents have had many opportunities to stage protests and demonstrations.

"I really think it just has to take its course as a member's bill," Miss Clark said at her post-cabinet press conference.

"It will be debated in May. There is really no reason to change the way in which it is being handled."

The Government considered speeding it up so it could get it off the agenda before the May budget, but Miss Clark said keeping things the way they were would give supporters more time to have their say.

"What we've seen in the last couple of weeks is the very substantial organisations in our community, like Plunket, Barnados, Save the Children and many others who have decades of service to children in New Zealand come out and strongly support the bill," she said.

"And in the intervening period I'm sure the organisations that have been really shocked by the campaign against the bill will have a chance to have their voices heard."

The bill changes the Crimes Act and removes the statutory defence of "reasonable force" against assault on a child.

Opponents say it will turn parents into criminals if they even lightly smack their children.

Ms Bradford and her supporters argue that smacking has been illegal for more than 100 years, and removing the defence means people will not be able to get away with savagely beating children.

The Government had been waiting for New Zealand First to take a position on whether it should be turned into a government bill, but Miss Clark said the party had not opposed the idea and Cabinet made the decision to keep it a member's bill.

There is a solid 63 votes behind the bill, enough to pass it into law, and two National MPs are expected to add their backing to it as well.

A majority in Parliament is 61 votes."

Sunday, April 1, 2007

Open letter to the Prime Minister from the Timaru mother

Dear Ms Clark,

I refer to your many comments in the media in respect of repeal of S59 about people hitting their children with riding crops and getting off.

I am the mother who disciplined her son with the riding crop. This was controlled discipline, not an angry assault. My son had just swung a baseball bat at his stepfathers head. He could have killed my husband.

After the discipline we had a well behaved, loving and compliant boy. A riding crop is designed to give a stinging sensation but is not injurious. There were no marks left on my son at all.

I may have been acquitted, but I certainly have not "got off". Even though I was acquitted CYF seized custody of my son, tore our family apart and nearly three years later I am still fighting to have him returned as CYF do not agree with the fact I physically disciplined, even though all forms of non physical discipline had not worked with this child and this was the only thing that did.

My almost 15 year old son is desperate to be at home where he feels loved and secure.

I am a responsible Mum who dearly loves her children. My sons behaviour was unacceptable. I corrected it. Repeal of S59 removes a parents ability to correct a child. Many politicans have lied about our case in order to bolster their agendas.

I am fed up with people who were not party to the facts of our case using it as a reason to make a very bad law change.

We have been through hell at the hands of CYF.

My son was placed on Risperdal whilst in CYF care to modify his behaviour. This has been banned in the states for use on children because of the life threatenning side effects. The side effects of Risperdal and the psychological damage to him by being removed from a family who love him, were much worse than the thirty second sting to his bottom.

I am still fighting for my son to be returned to my custody. The hell we have been through at the hands of CYF is a worse punishment than any the court could have issued if I had been found guilty.

Please do not for one moment think I got off. CYF have seen that I did not.

I ask that you reconsider your stance on repeal of S59.

Your constituents do not support your stance according to online polls.

If you support repeal you are supporting the destruction of many more families through state intervention as the police will involve CYF (as they do already) when investigating complaints. Even if the complaints are unfounded CYF will still hold children from their parents. I know this as I am a support worker for PANIC (parents against negative intervention of CYF) and have seen many cases like this.

Ms Clark you are not a Mum, so you can only speculate what hell it is for a parent to have her child taken away. This punishment is worse than any that could be inflicted on a parent, short of a child dying.

I might have been acquitted but have been punished as if guilty.

Please do not quote our case again, unless you are properly representing the facts. Tell the public how the state have punished me even though I was found NOT GUILTY.

If you wish to discuss any part of this email with me, please call me on...

Winston's choice: NZ First or Labour First

this from http://www.scoop.co.nz/stories/PA0704/S00006.htm

Monday, 2 April 2007, 8:07 am Press Release: New Zealand National Party

Winston Peters has a very important choice to make on the anti-smacking bill on his return from overseas, says National's Shadow Leader of the House, Gerry Brownlee.

"New Zealand First or Labour First - that is the question for Winston Peters over the anti-smacking bill," says Mr Brownlee.

"If Mr Peters turns around and makes the decision that the Labour Government can progress the bill as government business in Parliament this week, then he is putting Labour First - not New Zealand First.

"The polls show that 80 per cent of New Zealanders do not support this legislation.

"New Zealand First's own supporters will be hoping that Mr Peters doesn't desert the principles his party was founded on - one of which is protecting the public against bad government.

"This will be a real test for Winston Peters.

"It's up to you Mr Peters: New Zealand First or Labour First."